The Role of Parliament in the Bangsamoro Administrative Code: a Comparative Assessment by Sir Paul Silk

The Role of Parliament in the Bangsamoro Administrative Code: A Comparative Assessment by Sir Paul Silk The Westminster Foundation for Democracy (WFD) is the UK’s democracy assistance agency, working in partnership with parliaments, political parties and civil society organisations around the world to create more inclusive, accountable and transparent democratic systems. Over the course of 2020-2021, WFD is delivering a programme to support the Bangsamoro Parliament and the wider transition in the Bangsamoro through the United Kingdom’s Conflict, Stability and Security Fund (CSSF). Recognising the importance of the Bangsamoro Organic Law (BOL) as a foundational document for the Bangsamoro, WFD’s programme is designed with the overall aim of supporting the implementation of BOL. The Bangsamoro Administrative Code is one of the key codes provided for in the BOL which the Bangsamoro Transition Authority (BTA) is responsible for promulgating. This comparative assessment of the Administrative Code, conducted by Sir Paul Silk, looks specifically and in-depth at the role of parliament within the Bangsamoro Administrative Code and provides analysis that may be helpful to policy- and law-makers when considering the draft code. Structure and contents of the Code What does the Code contain? 1. The Administrative Code is a lengthy and detailed document, large parts of which articulate the structures for public administration in the Bangsamoro Autonomous Region of Muslim Mindanao (BARMM). It contains much detail on bureaucratic organisation – for example, about half of the Code is taken up with details on the structures of the 15 Ministries, down to details such as the arrangement of hospitals or the responsibility for the care of street children or for bridge maintenance. There are even sections on good public sector human resource practice (for example, Chapter XVIII). 2. Important central sections of the Code deal with the Chief Minister and the with the Cabinet. One Book deals with the Chief Minister. Title I sets out his powers, with separate chapters on his power of control; his rule making power; his power of appointment and designation; his power to contract loans; and his power of Eminent Domain. Title II sets out over nine pages how his Office is organised. Title III deals mainly with a large number of Offices, Councils in and attached agencies to the Office of the Chief Minister, and with his power to reorganise executive offices. The next Book deals with the general functions of Cabinet Ministers, including such matters as their administrative relationship; their supervision and control and their powers to make appointments and enter contracts. 3. Preceding these sections on the organisation of the Executive, there are three Books. The first deals with miscellaneous matters, both general and specific, to do with Bangsamoro autonomy and administration; the second with intergovernmental relations; and the third with the Bangsamoro autonomous government. This third Book is divided into five Titles, dealing respectively with the Bangsamoro Government; the Wali; the Bangsamoro Parliament; the Bangsamoro Cabinet (divided into two Chapters, on Executive Officers and Administrative Organisation respectively) and finally the Bangsamoro Justice System. Are there changes that could be made to the structure or contents? 4. Before examining the applicability of the Code to the parliamentary system (the subject on which I have expertise), there are some points to make on other aspects of the structure and contents of the Code. 5. Much of the second half of the Code, and parts of the first half, consist of what one would expect to see in an Administrative Code – even if, from a UK viewpoint, details of the way a bureaucracy is organised are not usually set out in primary legislation: whether some of the more minor administrative details set out in the Code really need to be expressed in primary legislation is a question worth considering further. 6. However, there are other sections that simply replicate all or part of the contents of the BOL (a document equivalent to Germany’s Basic Law). This is the case with the sections on the Parliament, and other parts such as those defining the territory of the BARMM, the duties of the Wali, the justice system and the mechanisms for intergovernmental relations. There seems to be no good reason for repeating in the Code provisions of the BOL – and, indeed, it is undesirable to do so, seeing that the Code is a subsidiary document to the BOL and (as I understand it) cannot amend it. The rationale for why certain sections of the BOL were omitted from the Code (especially, in the case of Parliament, the BOL provisions on Sessions; Officers; Rules; Proceedings), and also for why other provisions of the BOL were subject to minor amendments in the Code, also needs to be considered further. 7. Other parts of the Code may need further amplification, perhaps in a separate Code. An example isChapter II on intergovernmental relations – these are likely to be tested as disputes about boundaries of powers arise, and more detail about, for example, dispute resolution mechanisms may be needed. The Bangsamoro justice system also probably merits its own Code. 8. Finally, the Code could benefit from some reorganisation (for example, it seems irrational that Book III, Title IV deals with the Chief Minister, Ministers and the bureaucracy when other provisions about these are contained in later Books). The inclusion of an index and a Table of Contents would also be very helpful. The Code and the parliamentary system What is a parliamentary system? 9. Bangsamoro has opted for a parliamentary system of government rather than the presidential system that operates at a national level in the Philippines. This is guaranteed in Article IV.3 of the BOL. This has led to debate about what constitutes a parliamentary system. There is no defining international text prescribing what a parliamentary system should consist of, and there is a world-wide spectrum of parliamentary systems ranging from those where the legislature appoints the executive and controls them scrupulously to systems where the legislature is weak and the executive, though nominally answerable to the legislature, is very powerful. In Bangsamoro, the term “Whig” has often been used to apply to the first type of system, and “Peelite” to the second – though these terms, drawn from British constitutional history, are not common elsewhere. 10. It is, however, possible to describe essential elements of a parliamentary system: that the Executive is formed from the majority in the Parliament, whether one party or a coalition, and is responsible to – or answerable to – that Parliament; that this Executive, also usually called the Government, is made up of Ministers, all or most of whom are MPs; that Ministers answer questions from MPs, appear before parliamentary Committees and reply to debates in Parliament; that their legislative proposals are subject The Role Of Parliament In The Bangsamoro Administrative Code: A Comparative Assessment - 2 to the scrutiny and approval of Parliament; and that Parliament can withdraw its support from Ministers, so causing either a change of Ministers or an election. In the UK, where there is no written constitution, there is even a doctrine of “parliamentary sovereignty” under which Parliament theoretically exercises supreme control without any power by a constitutional court to overrule legislation passed by Parliament. 11. Other frequent characteristics of a parliamentary system are a neutral and permanent civil service; a doctrine of collective Cabinet responsibility; a Cabinet subject to the direction of a Prime Minister; an adversarial parliamentary culture; and a tension between two roles undertaken by the Parliament – simultaneously sustaining the Executive and scrutinising the Executive (scrutiny of the Executive being the job of MPs who support the Executive as much as of those who oppose the Executive). 12. The variation in the balance of power between Executive and Parliament in parliamentary systems depends on the strength of the Executive’s majority in Parliament, the loyalty of Executive’s parliamentary support and the system of Rules of Procedure. The latter can, for example, restrict control of the agenda or effective legislative initiative to the Executive (the position in the UK) or allow all MPs freely to initiate legislation (true of Ukraine) or to control the agenda through a party-balanced Business Committee (as in France). 13. First-past-the-post electoral systems tend to result in strong governments, whereas Proportional Representation tends to result in coalitions and a greater balance between the respective powers of Executive and legislature. Thus it is a characteristic of the UK parliamentary system (where elections are conducted by first-past-the-post) that one political party dominates the legislature, and that power is concentrated in the hands of that party’s leader, the Prime Minister – so long as he or she retains the confidence of his or her parliamentary party. The UK is therefore a majoritarian democracy (it has even been characterised as an “elective dictatorship”). By contrast, power is more diffused in the non- majoritarian, consensus-based parliamentary system of countries like the Netherlands or Sweden that employ strictly proportional methods of election and which emphasise the primacy of Parliament over the Executive. 14. There is an added complication in the case of Bangsamoro. This is because there appears to be some haziness both in the Code and other constitutional documents in the descriptions of the functions of the Parliament and of the Government. Thus Title III.1.3 of the Code clearly gives executive authority to Ministers, but Title III.1.1 suggests that it is Parliament that governs. In the Code’s definition clause, the “Government of the day” is defined as “the political party or party coalition with a majority in the Bangsamoro Parliament. The Government of the Day forms the executive government, composed of ministers, and headed by the Chief Minister.” This reflects an ambiguity in the BOL where, under Art.

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